2015 (8) TMI 278

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.... are that the assessee in Tax Appeal No. 821 of 2007 filed return of income on 29th November 1996 declaring loss of Rs. 32,95,074/. The assessment under Section 143(3) of the Income Tax Act was completed and the Assessing Officer determined the loss at Rs. 1,65,52,578/by including the depreciation of Rs. 1,32,57,504/though the assessee had not claimed the depreciation. 3. This appeal was contested up to the Income Tax Appellate Tribunal, which decided against the revenue and in favour of the assessee. Therefore, the Revenue has preferred this appeal wherein the following questions are framed: "(A) Whether on the facts and in the circumstances of the case and in law was the Tribunal right in holding that no depreciation can be thrust upon ....

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....onsideration has already been concluded by the aforesaid two Division Bench judgments of this Court wherein in paragraphs 6 to 11 of Sun Pharmaceuticals Limited (supra) it is held as under: "6. The learned counsel for the appellant felt that as the aforesaid question was not raised in this appeal should be raised in this appeal afresh after many years that the issue involved in the present case, requires reconsideration, and therefore, Civil Application being OJ CA No. 546 of 2010 was filed after Tax Appeal No. 2/2002 was decided, and pursuant to the order passed in OJCA No. 546 of 2010, vide order dated 26.11.2014, the following substantial question of law has been framed by this Court, which reads as under: "Whether, the Appellate Tribu....

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....Court in Tax Appeal 2/2002 and Tax Appeal No. 175/2001. It is submitted that the questions of law are concluded, but no elaborate reasons are to be given in view of the finding of fact and the question also having been answered in the case of Manehdra Mills (supra), and therefore, the decision of the Honble Supreme Court will enure for the benefit of the present assessee as the amendment is after 2000 and not prior thereto. 11. The decision cited by the learned counsel for the Revenue of the Bombay High Court (supra) cannot be applied in the facts of this case and as far as this question of law is concerned. 12. This takes us to the original first question wherein also the learned counsel for the appellant has placed reliance on the decis....

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....reciation on the value of the capital assets enumerated therein. There is intrinsic evidence under section 43(6)(b) of the Act in the expression less all depreciation actually allowed to show that it is not as if all allowable deductions are to be granted by the Incometax Officer even when the assessee does not want the same. Subsection (2)(a) of Section 143(3) of the Act provides that an assessee can object to such deduction made under section 143(1). Therefore, the assessee can come forward in such a case and make clear its intention that it does not want to compute depreciation on the assets and wants no benefit of claiming any depreciation in respect thereof. The Circular of CBDT 29 D (XIX4) of 1965 (F. No. 45/239/65ITJ), dated 31.8.199....